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Monday, April 24, 2017

MJ
Bogatin (“Bo”) of Bogatin, Corman & Gold, is an Arts and
Entertainment Attorney in San Francisco. He is also a long-time President of
California Lawyers for the Arts. www.calawyersforthearts.org. Bo is available to answer some of your questions surrounding the business of Art Licensing. - THANKS BO!

Dear Bo, I was in my mother’s attic and discovered a box of my Great Aunt's personal writings and illustrations. It appears they date from 1880 and earlier to her death in 1925. I don’t think any were published, but I do not know! I would like to publish them. You indicated in a prior bLAWg that works published before 1923 are in the Public Domain. What about unpublished works from that date and earlier? Thanks! Teri

Good question, Teri. The Term of copyright for never-published works does require a different analysis from that we use for published works.

Start with the contemporary Term: the life of the author/artist plus 70 years. Working backwards, if the author/artist died more than 70 years ago – before 1947 – then their unpublished works are in the Public Domain. So, if you knew that none were published, we could conclude with certainty that all her writings and drawings are in the Public Domain (“PD”).

Had any been published, and the copyright registered as required under the 1909 Act, you will recall from my earlier bLAWg, that a registration in its Renewal 28-year Term 1923 through 1963 was granted a Term of 95 years after its original publication date. So, were you able to determine that certain works were published, the 1923 rule applies. Those published in 1923 would have their last year of copyright protection in 2018. Works first published in 1924 would be protected through 2019, and those published in 1925 would lose protection as of January 1, 2021. (See http://annietroe.blogspot.com/2016/09/bos-blawg-copyright-term.html )

I would add that there is a different rule for unpublished anonymous and pseudonymous works, and works made for hire (corporate authorship). In the case of these, the Term is 120 years from date of creation. So, had you found these materials but their author was unknown to you, it is quite possible that those works could still be subject to copyright protection. It is just a matter of knowing when they were created. As of this year, creation before 1897 would make them PD.Here is an online Chart that addresses this Term information for both published and unpublished works: http://copyright.cornell.edu/resources/publicdomain.cfm

Now, I want to say a few other things about works in the PD. First, while you have an absolute right to use these works any way you want, anyone else who has access to them would have the same right of use. Were you not to grant any third party access – or limit access to those who sign a Non-Disclosure Agreement with you – you could be the first to publish, and thereby have that advantage on any third party who might want to publish or make other commercial use of them. Even better, were you to publish them in a manner that includes contribution of new elements and materials by you, you have an absolute right to claim a new copyright for your additions to the PD material. By publishing a copyright notice with respect to your own contributions, would anyone else necessarily know which is your new material and which your Great Aunt’s? Not necessarily…More likely, however, even if you made known which was your Great Aunt’s original work, it would be impractical for any third party to ‘separate’ the PD material from your own additions and/or material enhancements. For instance, with your Great Aunt’s pen and ink drawings, were you to add colors, they might make a line of beautiful new greeting cards. While third parties would legally be able to strip out your color and look to add their own color choices, more likely than not, they would honor your copyright notice and published efforts. There would be little economic incentive to go to that trouble since your line is already available for sale. Disclaimer: The information contained in this website is not intended as legal advice. Because the law is not static, and one situation may differ from the next, we cannot assume responsibility for any actions taken based on information contained herein. Also, be aware that the law may vary from state. Therefore, this website cannot replace the advice of an experienced attorney. Receipt of this information does not create an attorney-client relationship. MJ Bogatin, Bogatin, Corman & Gold, www.bcgattorneys.com

Have a legal question? email it to info@AnnGraphics.com.
I will forward it to Bo. It might be a blog post! You can search "Bo's
bLAWg" to read more posts. I am looking forward to your comments and
thanks for sharing this great information on social media.

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Friday, April 14, 2017

There was something magical that would always happen when the paints came out in elementary school. The blank paper, the colors, the brushes, the freedom to let my creativity run wild was irresistible to me. I knew this was the job for me, no question about it; I was going to be an artist!

But how could I support myself painting and drawing? Although I graduated with a degree in fine art with an emphasis on painting and printmaking, the art gallery world didn’t seem a comfortable fit for me at that time. Therefore, as I considered careers, which would provide financial stability, becoming an elementary teacher would probably be a much better choice. Plus there were those summer vacations! Yes, then I could spend those summers painting and letting all that creativity loose, perfect!

Unfortunately, summer was never enough time to explore this missing part of my life. In my continued search over the following years for a career that blended creativity and challenge I worked within the interior design and visual merchandising fields. Both careers involved working with color, balance and form which was very creative and fun. Yet still missing was the opportunity to play with a blank canvas, splash in the paint and give life to a vision only I could see.

Maybe painting and making a product that I could sell would be the answer? Based on my love of textiles I developed a line of hand painted decorative pillows, tablecloths and napkins. Shortly I learned the price I would need to charge per piece would far exceed what the retail market would pay. It was through my research into having these products manufactured that I stumbled into the world of surface pattern design. Enrolled in a series of surface design classes in the mid 90’s I was fortunate to meet two other very talented designers. We formed a studio, created our portfolios and off we marched to exhibit at Surtex. What a grand and eye opening experience for us, this was exactly the career I had been searching for all these years. We exhibited together at Surtex and licensed our work for many years to manufacturers and retail businesses.

Due to my exposure at Surtex I was hired as an in-house designer for a ceramic dishware manufacturer. While working with this manufacturer I also had the opportunity to work with many freelance designers in providing art direction, not only for our in-house line of products but also for custom designs requested by our retail clients. Each October and May I enjoyed doing the visual merchandising of our showroom during the Tabletop Shows in New York, it was a nice little chance to revisit that creative expression.

After about 10 years working in-house I returned to freelancing yet continue to work on a contract basis with my former employer. Since my freelancing days of long ago the industry and Surtex have changed. We have gone from hand painting designs on paper to now submitting digital files. Licensing has also changed over the years with options ranging from limited use, exclusive use, and much more common now, flat fee and outright purchase. Freelance marketing strategies now are more varied to include websites, blogs, print on demand, Etsy, as well as exhibiting at industry shows. Becoming a member of artlicensingshow.com has been an invaluable source providing connections with manufacturers, sharing industry news and offering an open and supportive community of very talented designers.

My connection with other designers and various design blogs and websites help me navigate the waters, smooth out the ride and help keep me engaged and positive on this freelance journey. Those who admit to having their doubts about being talented enough to forge through the difficult times encourage me. There are times when that little personal critic sits on my shoulder and tries to convince me to give it all up, tells me I’m not cut out for this business. I cherish and flourish during the days that little guy has no words for me. Maybe success isn’t a measure of what I can do or create on a given day but more about what I learned during the process. Maybe it was the way those colors merged together in that little corner of my watercolor, or how that texture over there created interest. Relying on these examples as measurements of my success for the day, I stockpile them in preparation for the next conversation with that little demon.

Apart from a specific theme or subject I have repeatedly tried to identify my style and have wrestled with this issue all these years. As it has been with my creative career choices, how could I choose just one area of interest? All these career endeavors have added layers of complementary elements, each supporting the other. As far as branding a specific art style I skip along a narrow path between traditional and painterly to graphic and whimsical styles. Trying to convince myself to let one go and concentrate on the other seems such an impossible task for me. In many ways this split personality of styles has been a positive in my work with manufacturers and retailers. For now, a specific brand style may remain illusive for me but I enjoy having these options for the flexibility and diversity of design work that may come my way.

So many things can be the catalyst of inspiration for me. Of course nature and our visual world bring countless opportunities for creative expression, but also a memory, word or phrase, even music can take me to the drawing board. I am also inspired by the work of other designers and so thankful they are willing to share information selflessly and offer support when I fear I am off track.

I love watercolor and it’s surprises, but all paints and inks are good for the cause. Chalk and colored pencils have a home here in my studio, add a bit of collage material and stamping tools and the day is never long enough. Needless to say, digital art has slipped in and adds a whole new experience to my creative life. The variety of digital brushes, tools, filters and techniques are so numerous I often feel overwhelmed but am continually curious and anxious to explore them.

I tend to be a night owl especially if I am working on my own collections, sometimes I just get lost in the process of creating, that rather obsessive drive you just can’t stop. If there is a deadline looming I can be found in the studio early and eager. I guess this goes along with my split personality of style, the chameleon freelancer striving to make it all work.

Chocolate will always remain a favorite choice to satisfy a moment of craving, just as putting the final touch on a design satisfies the joy of being an artist. I look forward to continuing on this unique journey, with the challenges, the new experiences and especially to breath life into the countless designs dancing through my mind.

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About Me

Art for Stuff - Art makes me tick. I am an artist, illustrator and graphic designer.
As long as I can remember, I have been drawing and making things. Took EVERY type of art class I could and went to Iowa State University and studied art & graphic design.
​​LOVE mashed potatoes and gravy. Chocolate is a very close second. I have enjoyed sports all my life, right now the sport of choice is golf. Love a good cause. Red VW bug driver.

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